Southern Express Co. v. Grace

Cook, J., delivered the opinion of the court. Mrs. Grace recovered a judgment against the Southern Express Company for the value of four dresses which she had made and shipped to the party for whom they were made. These goods were delivered to the driver of the express company’s wagon, with the injunction that the express company must not deliver to the consignee unless fifty-eight dollars was paid to the express company before delivery. The express company’s agent at Meridian, the place of shipment,marked the package C. O. D., meaning collect on delivery. When the package reached the point of destination, Boligee, Ala., the express agent there permitted the consignee to take the goods out of the office for the purpose of examining them before paying the charges. The consignee accepted one of the dresses, valued at eleven dollars, and redelivered the others to the express agent with directions that he return them to Mrs. Grace. The dresses were sent back to Meridian and there tendered to Mrs. Grace, together with eleven dollars, the value of the dress retained by the consignee. Mrs. Grace refused to accept the dresses or the money, and brought this suit for the value of the entire shipment, with the result above stated. It is contended here that, when the express company delivered the goods to the consignee in violation of the instructions given by the consignor when the goods were delivered to the company at Meridian, it amounted to a conversion, and the company thereupon became liable to the consignor for the value of the goods, cit [272] ing Hutchinson on Carriers (3d Ed.), section 727. The text of the authority cited seems to support the theory of appellee, hut an examination of the cases cited by the author in support of the text will disclose that they do not so decide. It is probable that the author had in mind cases wherein the consignor lost the value of the thing delivered by reason of the violation of instructions. The cáse cited by the author is Knapp Co. v. Express Co., 55 N. H. 354. That was a case where the express company delivered a promissory note to the maker without first collecting the money due. At the time of the delivery of the note the maker was solvent, but afterwards became insolvent, and the consignor lost his money. The court held the failure to obey instructions was negligence, and the consignor could recover as damages the aggregate of the note and interest. The true rule is announced in another New Hampshire case, Lyons & Co. v. Hill & Co., reported in 46 N. H. 49, 88 Am. Dec. 189, and also cited in Hutchinson on Carriers, section 733. The “consignee is entitled to reasonable opportunity to inspect goods forwarded by a carrier, to be paid for on delivery, before he accepts them, and the carrier may offer him such' opportunity without becoming chargeable for the price.” In that case, as in this case, the goods were taken out, examined and returned to the carrier, and the carrier offered to return the goods to the consignor, who refused to receive them. In the present case the plaintiff lost nothing by defendant’s violation of instructions. If the consignee had kept the dresses, we would have an entirely different case. We think the court below erred in permitting the case to go to the jury. Reversed, and judgment here for appellant.